Fixing Incomplete, Incorrect, or Missing Terms in a Will or Trust

Are you affected by a Will or a Trusts that is out-of-date or contains substantial errors impacting its ability to administer assets or appoint executors and trustees? There are options available to remedy some types of defects through the New Jersey Superior Court. Depending on the nature of the issues involved, the beneficiaries may also be able to address other issues by mutual written agreement.

The sources of many problems in wills and trusts can vary. Some documents have been outmoded by changed circumstances, tax planning that no longer applies, naming deceased beneficiaries, or containing clauses that no longer work well in today’s world. In other instances, the person drafting the document may omit important terms or confuse the shares payable to the beneficiaries. Still more problems arise from do-it-yourself documents that suffer from wholesale errors, have entire sections missing, or are executed improperly.

Many of these issues can be cured if the beneficiaries are willing to avail themselves of the remedies available in New Jersey Probate Court. New Jersey Statute 3B:3-33.1a. holds that the “intent of the testator” controls a Last Will & Testament. If the testator’s intent can be gathered from the terms of the will – notwithstanding the mistakes or missing terms – then the issue can be addressed in Court through a verified complaint.

The problem may also be addressed by New Jersey statutes 3B:3-34 through 3B:3-48, which statutes can cure some types of ambiguities or missing language in the Will.

The same standards apply to trusts. New Jersey Statute 3B:3-33.1b. states that the “intention of a settlor” controls the interpretation of the trust. If the settlor’s intent can be divined from the trust itself, and addresses the defect in the trust document, then a Court may be to settle the issue.

If the settlor’s intent cannot be found in the document itself, then it may be possible to submit evidence showing the “probable intent” of the person who created the will or the trust. This evidence may take many forms, and it is important to speak with an experienced attorney who can focus the discussion.

In summary, if you are affected by defects or missing language in a will or trust there may be options to address the issues. The exact method needed to fix the will or trust depends on many factors. Some of these problems may be settled by a written agreement signed by all interested parties. Other issues are more involved and are better settled, or required to be settled, in New Jersey Probate Court. Again, it is important to speak with an attorney who is experienced in this type of law to properly guide you on the options that may be available.